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Judgment
B.P. Routray, J
Heard Mr. P.R. Chhatoi, learned counsel for the Petitioners, Mr. S. Sahoo, learned counsel for opposite party no.1 and Ms. Reshma Behera, opposite party no.2 in person.
Present CMP is directed against order dated 14th July, 2025 of learned 1st Additional Senior Civil Judge, Berhampur passed in C.S. No.329 of 2021, wherein the prayer of defendants to raise their counter claim has been allowed.
Present petitioner is the plaintiff who filed the suit in the year 2021 and present opposite parties, who are the defendants, filed their written statement on 20th December, 2021 after entered their appearance. Thereafter issues were framed on 8th April, 2022. The plaintiffs then adduced their evidence and the evidence from their side was closed on 8th September, 2023. After closure of evidence from the side of plaintiffs the defendants filed a petition to recall the witnesses of the plaintiffs for cross-examination which was allowed by the trial court and confirmed on challenge before this court vide order dated 30th September, 2024 passed in CMP No.690 of 2024.
The counter claim was filed by the defendants on 13th May, 2025. The same was allowed and the counter claim was accepted on record vide impugned order dated 14th July, 2025 of the trial court. The same is challenged by the plaintiffs in present CMP.
Law on the principles to file the counter claim in terms of Order 8 Rule 6-A of the Code of Civil Procedure is well settled. In Ashok Kumar Kalra vs. Wing CDR Surendra Agnihotri & Ors., (2020) 2 SCC 394, it has been held as follows:-
“21. We sum up our findings, that Order 8 Rule 6-A CPC does not put an embargo on filing the counterclaim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:
(i) Period of delay.
(ii) Prescribed limitation period for the cause of action pleaded.
(iii) Reason for the delay.
(iv) Defendant's assertion of his right.
(v) Similarity of cause of action between the main suit and the counterclaim.
(vi) Cost of fresh litigation.
(vii) Injustice and abuse of process.
(viii) Prejudice to the opposite party.
(ix) And facts and circumstances of each case.
(x) In any case, not after framing of the issues.
Xx .. .. xx ..
Having considered the previous judgments of this Court on counterclaims, the language employed in the rules related thereto, as well as the intention of the legislature, I conclude that it is not mandatory for a counterclaim to be filed along with the written statement. The court, in its discretion, may allow a counterclaim to be filed after the filing of the written statement, in view of the considerations mentioned in the preceding paragraph. However, propriety requires that such discretion should ordinarily be exercised to allow the filing of a counterclaim till the framing of issues for trial. To this extent, I concur with the conclusion reached by my learned Brothers.
However, for the reasons stated above, I am of the view that in exceptional circumstances, a counterclaim may be permitted to be filed after a written statement till the stage of commencement of recording of the evidence on behalf of the plaintiff.”
The findings of the trial court are to the effect that since the cause of action arose for the defendants on 3rd December 2022 to raise their claim and so the counter claim, which is filed within three years from the date of cause of action, is liable to be accepted.
The defendants contend before this court that they earlier filed CS No.464 of 2021 against the plaintiffs along with others praying for eviction of the plaintiffs from the suit land and the same was dismissed on 3rd December, 2022. Therefore after disposal of their independent suit, the cause of action arose for filing of the counter claim on their behalf.
It is true that the limitation to file the suit for eviction is for 3 years. Here is a case where the counter claim has been filed and not a separate suit. A counter claim is governed by the provisions contained in Order 8 Rule 6-A of the C.P.C. It is prescribed in the rules that the counter claim shall have in respect of a cause of action accruing in favour of the defendant either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence. In other words, if the cause of action in the counterclaim relates to one accrued after filing of suit, it should be one accruing before filing of the written statement or the time given for the same. Further, the counter-claim has the same effect as of the cross suit and the plaintiff is entitled to file a written statement in answer to the counter claim. Thus, accrual of a subsequent cause of action after filing of the written statement and limitation thereof cannot be computed separately in derogation of the limitation prescribed for filing of counter claim. The period of limitation may continue for filing a separate suit, but for counter-claim the same should not overlap the period of limitation prescribed for the purpose of counter claim. As settled in Ashok Kumar Kalra (supra), a counter claim has to be filed before the evidence has commenced.
In the instant case, undoubtedly the evidence from the side of the plaintiffs has already commenced and it has been completed vide order dated 8th April 2022, regardless of the fact that further cross-examination of the witnesses at the instance of the defendants has been allowed and till now the cross-examination has not been completed. Thus, undisputedly the evidence having been commenced in the suit, the defendants are precluded or time-barred from raising a counter claim.
The contention of the defendants is that since their independent suit for eviction along with other reliefs against the plaintiffs was dismissed on 3rd December 2022, so the cause of action to file the counter claim arose only on 3rd December 2022. Such a contention raised on behalf of the defendants cannot be accepted for the counter claim because the principle for counter claim is differently governed as per the provisions contained in Order 8 Rule 6-A C.P.C. When present suit was filed in the year 2021, the defendants have filed their written statement on 20th December 2021 after their appearance in the suit. Thus, for the purpose of filing of the counter claim, it is to be seen whether the cause of action was there on the part of the defendants to file the counter claim in the suit according to their contentions. What happened after filing of the written statement is a subsequent cause of action, may be in favour of the defendants to file a separate suit, but not for raising a counter claim in derogation of the provisions as per Order 8 Rule 6-A. It is true that as per the provisions contained in Rule 6-A a counter claim has the same effect as a cross suit, which otherwise means that a cross suit has to run along with the main suit. Therefore, the interpretation made by the trial court as per the contentions of the defendants that the subsequent cause of action arose on 3rd December, 2022 to file the counter claim is found unacceptable. Furthermore, as per the written statement filed by the defendants the cause of action arose for them on 23rd August, 2021.
Present suit has been filed by the plaintiffs praying for declaration of right, title, interest which is opposed by the defendants and in addition to that they pray for eviction of the plaintiffs from the suit land by way of counter claim. But as the principles are well settled that a counter claim must be filed prior to commencement of evidence present interpretation of the trial court to allow the prayer of the defendants permitting them to raise the counter claim is found erroneous. Accordingly the impugned order dated 14th July, 2025 is set aside.
In the result the CMP is allowed.